The Right Coast

January 31, 2004
Good news on Hubble?
By Tom Smith

This is good news. Apparently a deluge of protest has greeted NASA's announcement that they were going to let Hubble die. Has NASA been responsible for any more important scientific accomplishment than Hubble? I can't think of any. It certainly makes a lot more sense than putting delicate water and carbon based life bags on Mars.

Perfect Match (A Bit Scary)
By Maimon Schwarzschild

You might as well try Time-AOL's Presidential Match Test. Unlike Andrew Sullivan, who found himself with all the Democratic candidates ahead of Bush, I came out at Bush 100% (yes, 100%, no less and, er, no more). (Then Lieberman 72%, Edwards 54%, Kerry and Clark both 53%, Dean 49%, Sharpton 43%, Kucinich 23%.) I suppose I shouldn't be surprised at Kerry and Clark on 53%: each of them has taken every major position on every major issue, so I assume every voter in the country agrees with them just about 50%. But do I really agree with Al Sharpton 43% of the time?

Sullivan of course is proud at being proved a "conflicted political animal". By the same token I am a bit abashed at emerging 100% for anybody. Still, there it is.

What do you think? Shall I try computer dating?

New Frontiers in Economics: The Orgasm
By Michael Rappaport

An interesting post at Marginal Revolution discussing a scholarly paper on the Economics of Orgasm:
    The paper models love-making as a signaling game. In the act of love-making, man and woman send each other possibly deceptive signals about their true state of ecstasy.
This description reminded me of that movie “What Women Want,” with Mel Gibson and Helen Hunt, where the womanizer Gibson is given the ability (or curse) to hear women’s thoughts. (A good movie, except for its pursuit of an excessively pro-women, anti-man view of the world.) Because of his ability to read women’s minds, Gibson is able to give Marisa Tomei’s character the best lovemaking of her life. The idea, which is supported by this paper, is that sex is like a game of poker and Gibson can win because he knows what the other player’s cards are. (Somehow, I don't think Gibson needs this additional help.)

Other interesting facts from the post:
    72 percent of women admit to having faked it in their current or most recent relationship, for men the number is 26 percent. (Not exactly news, about the women at least, for those who have seen When Harry Met Sally.)

    You are more likely to fake an orgasm if you are in love.

    The more education you have, the more likely you are to fake orgasm. (I suppose all of those Women’s Studies Programs are having a curious effect.)

January 30, 2004
Somebody help this woman!
By Tom Smith

The thing I object to most about Maureen Dowd is that she is not funny, at least not lately. Her mind is just not cut out to deal with big complicated issues with fates of many lives, principles and nations at stake. I would be quite happy to read things making fun of Bush and Cheney, if they made me laugh. And look, Bush is not that hard of a target. He is remarkably inarticulate whenever he departs from prepared text, and he does have a tendency, apparently familial, toward goofiness, that could easily be parodied as that of an evil clown. But instead all Dowd can harp on is that fact that he is a guy. She has never gotten over not being her high school quarterback's best girl. Cheney is well known around D.C. as being the kindly uncle who in fact has a steel heart and ice water in his veins. There's plenty to work with there. Instead, Dowd tries to portray him as a ranter, when in fact his speech has the quality of a nerveless surgeon. Of course her politics annoy me, but what offends me is her utter lack of insight. She sounds like the shopping mom who spends all her time telling the same stale jokes to her friends who laugh at them mechanically, because they are working off the same stale script themselves. She needs to get out more, with some different people. That she has such a prominent perch is proof that labor markets are full of rigidities, and markets are imperfect. Maybe Krugman could use her as an example in his next piece about why we need government intervention. She is at least as infuriatingly clunky as Windows.

Amateur Hour at the New York Times
By Tom Smith

Here is Paul Krugman on WMD's in Iraq. Here is Krauthammer. Krauthammer is a professional journalist. Krugman is a professional economist, indeed one who has excoriated non-professional economists from daring to comment on economic policy. Why does Krugman think he is qualified to even have opinions about the intersection of intelligence gathering, security policy and international affairs? Yes, he is a talented mathematician. But his views on politics seem no more sophisticated to me than those of the average science major at an Ivy League college. Yet, I am sure most readers of the Times just eat him up. Such a bright boy.

The European Problem
By Tom Smith

More essential reading from George Weigel.

January 29, 2004
Bush and the Republican Base
By Michael Rappaport

Glenn Reynolds thinks that Bush has problems with his base. It is quite possible.

Berman on the Left
By Michael Rappaport

A powerful essay in Dissent magazine by a man of the left. There is a socialist on my faculty who comes across the same way: it is called integrity.

January 28, 2004
The State Dep't and WMD
By Michael Rappaport

A good point made by Jonah Goldberg at the Corner regarding the WMD issue:
    The emphasis on WMDs was largely the result of lawyers at the State Dept. thinking that was the only "legal" reason we could go to war. To the extent the post-Iraq failure to find WMDs is a disaster for the United States in terms of its credibility, its relationships with allies etc. one could argue that the fault lies in the fact that George W. Bush listened too much to Colin Powell and the State Department instead of the hawks, since it was the Wolfowitz crowd which wanted to emphasize freedom, democracy, stability and the war on terror.
I know everything can't be Powell's fault, but it sure does look like that way.

What's so bad about inequality?
By Tom Smith

An illuminating if not exactly interesting debate is going on over at Brian Leiter's site, due to reactions to his posting of a Cornell philosopher's epistemological (using the term loosely, believe me) argument that commentators on the left and the right should not be treated with equal skepticism. I simplify the philosopher's argument only slightly by saying that his view is that persons of the left should be given more credit because they are less likely to be wicked, and so less likely to be lying than persons, such as myself, who might be considered on the (ever so reasonable) right. First, let me assure my readers that the chances on any important election being decided by this philosopher or indeed all American philosophers voting one way or another is vanishingly small. The chances that our next President will be Lyndon LaRouche are much higher, so you all can just relax. The hideously unequal regime under which we swill champagne, smoke cigars, oppress workers, not to mention discriminate against every single group imaginable is safe for the time being.

In my wickedness, it has occurred to me to wonder just what is so bad about the inequality that exercises the left so that it leads them to such intemperate remarks? I was an undergraduate major in the very Cornell philosophy department from which this current mini-Jerimiad issued, and I have to say, folks seemed to be living pretty comfortably there last I checked. The Sage School of Philosophy is well endowed by a family that no doubt made its fortune in some very capitalistic endeavour, as indeed is much of the rest of at least the Arts and Sciences college at Cornell. Willard Straight Hall, the student union, is named after one of the great railroad entrepreneurs. I must say I am at a bit of a loss as to how exactly the philosophy professor is benefitting any less from 'hideous inequality' than my friend Gary Lawson, who is also a professor at a large private university, which no doubt has its own pots of cash given to it by people who felt driven to make more money than anybody else. There really are people of heroic virtue out there, and Gary Lawson actually comes much closer to this ideal than most people I know, so it just figures some guy whose mastery of oh, say, economics, is probably well captured by his remark that '95 percent of people were made worse off by Reagan's upward redistribution' (my paraphrase), should decide to pick on him. But I have in mind more the people who really do spend their time trying to help the street children of Lima or Bangkok, rather than trying to figure out whether we are really just brains in a vat.

But of course, I have forgotten that saving a few kids here and there is a far, far too modest ambition for those moral heroes on the left. Why do that when you can build the grand intellectual structure that would lead us all to the promised land of equality and plenty, or at least sufficiency, if only the benighted masses would wake up and follow it? It would be too easy to attribute to energetic leftist youngsters the same bad motives they often seem willing to attribute to their ideological foes, not to mention their intellectual betters, at least in fields that hold some promise of actually helping the suffering poor. Anyone who has spent any time in real politics, which includes very few philosophers these days, I would bet, should know there are more than enough evil people to go around. But what baffles me is how earnest left-wingers don't seem even to grasp the plausibility of the widespread belief along the lines of "socialism is a recipie for poverty and misery." I mean, why don't China, the USSR, Vietnam, Cuba, North Korea, all the Eastern bloc countries, and every African and South American basket case count? Of course it's obscene that Donald Trump spends ten million decorating his private jet (and making it look like a ladies' powder room in the process) while some poor kid in Queens dies for lack of medical insurance. As soon as we perfect magic redistribution run by the wise and just, we'll be all set. In the meantime, they have socialized medicine in Canada, and you can get absolutely first rate medical care there. The problem is, you have to be a cow. If you're a human, well, wait in line, or get on the bus to Seattle.

In the meantime, Brian has documented how philosophers can't get out of relatively socialist Britain fast enough, and get over to the good, old evil US of A, where, by gummy, a philosopher can put down roots, make an honest living, split rails, bust sod, chop wood, and get his own little piece of the American dream. Excuse me for a moment while I laugh my head off. The problem with the UK? They don't make enough money there! They like it better here, where they can be more rich. You really have to wonder how they would vote if there was a chance they would determine the matter. But be charitable dear reader. Hypocrisy is the homage that vice pays to virtue. In the meantime, if you find yourself in between a philosopher and a hundred dollar bill, my advice is get the hell out of the way!

Good reason not to shoot at US Army in Iraq
By Tom Smith

My brother (a litigator in HI) sent me this footage of an Apache helicopter at work in Iraq. I suspect it is making the rounds on the internet. It shows a number of things: the devastating effectiveness of a 30 mm chain gun with explosive rounds, the awfulness of war, and so forth. Not for the sqeamish. The link is to my family website as I have no idea how to upload a windows media file in blogger.

Cowan on Restricting Choice
By Michael Rappaport

An interesting post by Tyler Cowan at Marginal Revolution on to what extent consumers desire that their choices be restricted. Even more interesting, though, is this self description by Cowan:
    When I go into a (good) restaurant, I like to simply tell the waiter that I don't want to look much at the menu, and he should simply bring me what is best. If he asks what that means by "best," I (sometimes) respond by telling him I am an aesthetic Platonist and that best is best. Or I will ask the waiter to imagine it is his last meal on earth and to bring me the relevant dishes he would order. Other times, such as when I am buying classical compact discs, I wish to survey all the available information before buying Freddy Kempf's stunning Transcendental Etudes, composed by Franz Liszt. Have I mentioned it is the sixth recording of those pieces in my collection?

January 27, 2004
Galt on Housing and The Passion
By Michael Rappaport

Two interesting posts by Jane Galt, one on Mel Gibson's The Passion and the other on whether we are in a housing bubble. Money quote from the housing post: "Anyone with any sense at all will tell you that shortly after 2010, housing prices in most currently hot markets are going to fall off a cliff, as boomers downsize."

January 26, 2004
More Electoral Musings: Revealing Events and Late Hits
By Michael Rappaport

One aspect of Howard Dean’s decline seems striking: The emphasis that has been placed on the speech that he gave the night of the Iowa Caucuses. Should this one speech really matter that much? Although Dean’s decline began well before the speech, I actually believe that single events of this sort not only do, but should matter. His speech suggested that he was capable of rash, undisciplined, and mean-spirited behavior, when he should have been dignified and restrained. This is relevant to the merits of his candidacy both because it is a window into his personality and how he would govern, but also because part of the President’s function is to project a public personality that can help unify the nation.

Other single events have also proved significant, and in retrospect, perhaps justifiably so. Al Gore was leading George Bush in 2000 after the conventions, but then Gore behaved badly during the first debate – making faces, acting aggressively, and interrupting – which so turned off the electorate that Gore fell behind in the polls until the election.

Interestingly, I did not find Gore’s first debate behavior so bad. Nor, I must admit, was I so put off by Dean’s Iowa speech. But apparently I have a minority view. And I must admit, the American people may have had more insight here. Gore’s behavior during the debate was exactly the kind of behavior one would expect of someone who would refuse to accept the Florida results and would be willing to put the nation through a political crisis.

It may therefore be justifiable to use single events to judge someone’s character and merits as a candidate. By contrast, a different type of event – a late hit in the election – is what worries me about our electoral politics. I mentioned above that Bush remained ahead after the first debate, but he appeared to have lost the popular vote largely due to a surge for Gore provoked by a Democratic activist’s release of Bush’s Maine DUI arrest, an illegal and cheap shot that was delayed until the weekend before the election. (Yet, Bush appeared dignified and calm in response, which certainly reduced the damage.) An even worse late election hit, now largely forgotten, involved Bush’s father. The week before the 1992 election, Lawrence Walsh, the Independent Counsel, issued an indictment of Caspar Weinburger that ended a surge in Bush’s popularity. Walsh had no reason other than partisanship to issue the indictment before the election and it was done in violation of Justice Department guidelines – an impeachable offense for an independent counsel if there ever was one. Even if you think Ken Starr behaved badly, he never did anything approaching this level of misconduct.

The moral, I suppose, is that the electoral process can suitably emphasize single events that reveal something about candidates, but late hits are problematic. Sadly, such hits appear to have increased in recent years, as the recent California gubernatorial election of Schwarzenegger suggests. I wonder what electoral surprises we can expect this November.

Dean scream remix
By Tom Smith

I still think Dean is getting shafted by the media. But that doesn't stop me from enjoying it. The Dean scream remix, courtesy of

More on Legacy Policies in College Admissions
By Gail Heriot

Gentle readers may recall my posting on January 19th arguing against preferences in college admissions for the children of alumni and Frank Snyder's response, which I posted on January 22, defending these legacy preferences on the ground that they are helpful in raising funds. Here's my response to Frank's useful and interesting comments:

(1) Even if I were to agree that state universities ought to be able to give preferences to the offspring of wealthy donors for the good of the school as a whole, that's not what legacy preferences do. Few alumni are wealthy donors and most wealthy donors are not alumni. The legacy system runs on the bureaucratic award of a small leg up to the children, grandchildren and siblings of all alumni, regardless of their willingness to provide support for the school financial or otherwise. If anything, one would expect knowledge of such a program might discourage giving, since it renders actual support of the school unnecessary. Why make a handsome gift if the preference is automatic?

I have asked university officials at several schools whether they have any support for the notion that legacy preferences increase alumni giving, None has over been able to give me any. Of course, Frank may be right that alumni whose children also have attended their alma mater are more likely to give than those whose children have not attended the school. But even if they do, the line of causation would be difficult to trace. Are alumni more generous because their children have attended the school? Or did the child wish to attend the school because he was brought up in a household in which his parents spoke favorably of it (and hence were inclined to be generous with it)? Even if it could be established that having a child attend one's alma mater increases alumni generosity, that doesn't mean that having a child who is admitted to the school on a preference will increase alumni generosity. A student whose academic credentials place him below the ordinary cut-off for admission will often find himself at or near the bottom of the class. This may dampen the alumnus parent's enthusiasm for his alma mater rather than enhance it.

Under the circumstances, I have opposed such preferences. I think they will likely be seen by those not eligible for them as an unattractive effort to ensure that the haves of this world continue to be favored over the have nots. One can argue that they don't do much harm, since the preferences are too small to make much difference in actual cases. And that's true. But they send a poor message, and like all special pleading, they encourage further special pleading.

As an aside, I would be interested in learning the history of regularized legacy preferences. At what point in the history of American higher education did the Harvards and Yales of the world decide that the offspring of their graduates should get a regularized special break? (((I used to regard the practice as somewhat in tension with the much-vaunted Harvard/Yale practice of discriminating against their own undergraduates for admission to their graduate and professional schools. I have since been told that this latter practice is more public relations than actual policy; in practice it is said that the level of discrimination is somewhere between zero and vanishingly small. Its purpose is to give those schools a ready-made answer to the question, "If your undergraduate program is so good, why don't its graduates dominate your graduate programs to a greater degree?" I cannot, however, vouch for the accuracy of that information. But I digress ....))) I wonder if legacy policies didn?t get started back in the days of what Harvard President A. Lawrence Lowell indelicately called the "Hebrew problem." Jewish students applying to Ivy League schools in the 1920s often had such good credentials that they were said to be "crowding out" the WASPish scions of wealth and privilege who had previously dominated the ivy halls. If so, I think that purpose long ago disappeared from the minds of those who run the institutions that currently such a legacy policy; whatever can be said about legacy programs, they are not intended and do not function to disadvantage Jews. But such a history could explain why the practice so ill fits its avowed purpose of fostering school spirit and enhancing alumni generosity and indicate why the preference as practiced is so minor today. Nobody really has his heart in it anymore, except maybe a few bureaucrats in the admissions office who have convinced themselves that their school really will reap millions on account of the policy. In general, legacy programs are a relic.

(2) Should public universities give preferences to the children of alumni if it can be shown that such a policy does on average enhance alumni generosity somewhat? Even then, I don't think so. (((I'm going to limit my remarks to public universities since my original remarks were so limited. I generally prefer to let private institutions go to heaven or hell in a handbasket of their own making and will acknowledge that Frank's argument is stronger when it is applied to them, although not necessarily strong enough.))

As Frank seems to acknowledge, there are certain things that the State shouldn't sell to the highest bidder even when, as I am assuming arguendo here, the highest bidder's check is not going to bounce. For example, few would dream of determining who attends public universities solely on the basis of auction. The whole purpose of publicly-subsidized higher education is to provide an education for those who otherwise might not be able to afford it. Selling off seats to the highest bidder destroys the argument for having such an institution.

In my view, even a more limited auction--one that sells only some seats and only to a certain class of persons--is also a mistake. In my earlier epistle, I argued that some of the problems with legacy policies can be exposed by attempting to extend the argument to other government functions: Just as the children of California taxpayers should be taxed at the same rate as everyone else even if it can be shown that families that remain in the state for more than one generation do more for the state (including making gifts to a state university) than those that don't, children of alumni should be treated the same for the purposes of state university admissions. It's unseemly to favor a group that is generally regarded as politically well-placed even if one can come up with a supposed benefit that doesn't flunk the laugh test on empirical plausibility. And I suspect most people would indeed regard it as unseemly. There's a reason university catalogues seldom mention legacy preferences and when they do, they do so only in vague incomprehensible terms: They recognize that such practices cannot stand the light of day.

I disagree that university admissions policies do not present a serious risk of corruption to government officials. Maybe they shouldn't, but voters care a lot about who gets in and who doesn't get in to state universities. Since voters, care, politicians (including that very special breed of politician, the public university official) care; they understand that seats in the university class have become an important source of pork and they want to be able to deliver as much of it as possible to their constituents. Each state has a choice: It can adopt a standard for admission--like "We seek the students whose high school record predicts the best possible academic performance"-- and hew as close to that line as possible in developing the details of its admissions policy. Alternatively, it can employ more complicated definitions of what constitutes the most desirable students. If it does, however, it can rely upon the fact that it will get a free-for-all driven by whoever has the most political clout for all manner of special consideration--legacy preferences, geographical preferences, donor preferences, preferences for the children of faculty and staff, racial preferences, ethnic preferences, athlete preferences, preferences for political activists, a new expanded round of racial preferences, and a new expanded round of ethnic preferences. It's hard enough to resist all this special pleading when you aren't carrying out a policy that on its face appears likely to benefit those who already have had advantages in life for purely speculative gain. When you are carrying out such a policy, it becomes about impossible to resist other policies.

(3) Frank can legitimately complain that I have resisted answering the question in its starkest form, which can be put this way: What should the president of a struggling college do when the world's richest man offers her a $500 million if only she will admit his son, who missed the SAT cut-off point at the school by only one point? The school will go bankrupt without the money. Frank would be right; I haven't answered it. On the whole, however, I think she is likely to be judged less harshly than the woman in the story that is sometimes attributed to Churchill and sometimes to Shaw:

---Madam, would you sleep with me for a million pounds?

---Well, yes, Mr. Churchill, I probably would.

---How about for one pound?

---What do you think I am Mr. Churchill, a common whore?

---We've established that, Madam; now we're simply haggling over price.

Prestigious Academic for Sale. Call 1-800-FOR-COLLEGE
By Tom Smith

Maybe I'm missing something in the interesting Oracle-PeopleSoft hostile tender offer. In its latest move, Oracle has nominated five new members it wants to put on the PeopleSoft board including two well know academics. PeopleSoft's response is that these academics and venture capitalists (as the other nominees are) are being paid by Oracle and are under contract with Oracle and so are just Oracle stooges, in effect. Now, what strikes me is that, well, yeah, that is obviously true. The PR point of hiring prestigious academics to be your nominees to the board of the target eludes me a little bit. Is it really any better than hiring Jones, your elevator operator, to be on the board, while assuring all the PeopleSoft shareholders not to worry, that he will do exactly what Larry Ellison (CEO of Oracle) tells him to do? Wouldn't the elevator operator be cheaper than the business school professor? I don't mean to sound superior. Law professors are famously for sale, by and large. When I was in practice we hired a very famous constitutional law professor to espouse some ridiculous proposition or other and it worked like this. We wrote the opinion, and faxed it to him. It came back with a few commas changed. We faxed it back and sent a check for ten large. The opinion came back with the law professor's signature. Perhaps judges are smart enough to completely discount such opinions--I don't know. But as to the Oracle bid, does anyone really think there is any significant chance that once in place the prestigious academic director would say "Ah ha! I have had a revelation! This takeover bid sucks!"

Come to think of it, there was another Delaware case involving Larry Ellison and a law professor at Stanford, Joe Grundfest, and Michael Boskin, an economics professor at Stanford, who were to sit on an independent litigation committee and moot whether some derivative suit or other should go forward against Oracle directors. The correct answer was undoubtedly NO!, since most derivative suits are a waste of time and shareholders' money, but it seemed to me the judge was equally correct when he said, oh, come on, you're telling me two Stanford professors are really independent when Larry Ellison practically has the Stanford pine tree tatooed on his forehead? Here Delaware law faced the difficult question of how ridiculous a joke an independent committee should be allowed to be. Ridiculous of course, but not very, very ridiculous is perhaps the rule. Maybe this case has been appealed and maybe it will be overturned. But I have seen what happens to professors whenever billions of dollars are in the vicinity, and let's just say "independence" is not the first word that springs to mind.

If I were a judge, I would only allow retained academic experts into my courtroom if I were desparate for a laugh. Otherwise, I would just hire my own on the tab of the parties, assuming the FRCP would allow this, which seems doubtful, but I wouldn't know.

Disclosure: Out of sheer laziness and disorganization, I have never, or only very rarely, consulted for pay, notwithstanding my fame as a brilliant corporate law professor. Should anyone wish to test my commitment to the above views by tempting me with huge pots of money, I suggest they contact me immediately.

Electoral Musings
By Michael Rappaport

Howard Dean has been declining in popularity precipitously. This is an extraordinary development. Initially a relative unknown, Dean then became the frontrunner and seemed to have a lock on the nomination, only to dramatically decline in the polls in the brief period leading up to the Iowa caucuses. Amazing. What accounts for this story? And what does it say about the American political system?

We know why Dean initially became popular. He was willing to sharply criticize the war in Iraq, when the other Democratic candidates had voted for the war and were unwilling to harshly condemn it. Dean thus became popular with the most extreme members of his party and became the clear frontrunner.

Dean’s popularity, however, eventually declined. First, Dean’s message was stolen or copied by the others. Irrespective of their initial positions, they all came to mirror his negative view of the war. With his main advantage eliminated, his disadvantages began to become more prominent. Dean had an aggressive, loose-canon quality to his personality that was neither attractive nor presidential. As the Iowa caucuses approached, two things happened. First, voters began to get a bit more serious. Did they really want to vote for someone who was this extreme? Also, did they really want to vote for someone who seemed incapable of beating Bush? The answer was no. Clearly, there is a difference between an opinion poll and a vote. Further, as the caucuses approached, the more moderate voters began to focus on the election, people who were less supportive of Dean’s extreme stance. Finally, there was Dean’s, now infamous, concession speech after the Iowa caucuses, in which he was seen as being angry, out of control, and not very presidential.

What is one to make of all this? In my view, it suggests some real benefits to our much maligned primary process. The process allows unknowns like Dean to have a chance at the nomination, but they must prove themselves in a long, drawn-out marathon. Lately, Dean has fallen behind in the marathon. He has not been able to attract the moderates and his Iowa speech suggested a lack of presidential character. Dean’s troubles thus arguably represent the primary process preventing an extreme and possibly out of control candidate from securing the nomination.

Just a red dirt boy from Arkansas
By Tom Smith

His generalship Clark's protestations of his 'umble upbringing reminds me of this classic Monty Python skit.

More Electoral Musings: Revealing Events and Late Hits
By Michael Rappaport

One aspect of Howard Dean’s decline seems striking: The emphasis that has been placed on the speech that he gave the night of the Iowa Caucuses. Should this one speech really matter that much? Although Dean’s decline began well before the speech, I actually believe that single events of this sort not only do, but should matter. His speech suggested that he was capable of rash, undisciplined, and mean-spirited behavior, when he should have been dignified and restrained. This is relevant to the merits of his candidacy both because it is a window into his personality and how he would govern, but also because part of the President’s function is to project a public personality that can help unify the nation.

Other single events have also proved significant, and in retrospect, perhaps justifiably so.
Al Gore was leading George Bush in 2000 after the conventions, but then Gore behaved badly during the first debate – making faces, acting aggressively, and interrupting – which so turned off the electorate that Gore fell behind in the polls until the election.

Interestingly, I did not find Gore’s first debate behavior so bad. Nor, I must admit, was I so put off by Dean’s Iowa speech. But apparently I have a minority view. And I must admit, the American people may have had more insight here. Gore’s behavior during the debate was exactly the kind of behavior one would expect of someone who would refuse to accept the Florida results and would be willing to put the nation through a political crisis.

It may therefore be justifiable to use single events to judge someone’s character and merits as a candidate. By contrast, a different type of event – a late hit in the election – is what worries me about our electoral politics. I mentioned above that Bush remained ahead after the first debate, but he appeared to have lost the popular vote largely due to a surge for Gore provoked by a Democratic activist’s release of Bush’s Maine DUI arrest, an illegal and cheap shot that was delayed until the weekend before the election. (Yet, Bush appeared dignified and calm in response, which certainly reduced the damage.) An even worse late election hit, now largely forgotten, involved Bush’s father. The week before the 1992 election, Lawrence Walsh, the Independent Counsel, issued an indictment of Caspar Weinburger that ended a surge in Bush’s popularity. Walsh had no reason other than partisanship to issue the indictment before the election and it was done in violation of Justice Department guidelines – an impeachable offense for an independent counsel if there ever was one. Even if you think Ken Starr behaved badly, he never did anything approaching this level of misconduct.

The moral, I suppose, is that the electoral process can suitably emphasize single events that reveal something about candidates, but late hits are problematic. Sadly, such hits appear to have increased in recent years, as the recent California gubernatorial election of Schwarzenegger suggests. I wonder what electoral surprises we can expect this November.

Obit Of The Day
By Maimon Schwarzschild

For the story of an odd, and oddly impressive man -- and an example of the English broadsheet obituary as art-form -- read today's Daily Telegraph obit of David Levy. Levy was a romantically conservative sociologist. He also provided practical help to intellectuals behind the Iron Curtain throughout the 1970s and 80s. The Telegraph describes him as "openly but discreetly homosexual". He has died of AIDS, after a long and harrowing battle. He seems to have lived a rich intellectual life, in high style throughout.

January 25, 2004
David Kaye's Statement
By Michael Rappaport

A good post over at Rantingprofs about the coverage of David Kaye's recent statements that he does not believe the Iraqis had a stock of WMD at the time of the Iraq War.

Review of What it Means to be a Libertarian
By Michael Rappaport

Tim Sandefur has an interesting review of Charle's Murray's, What it Means to be a Libertarian, a short but powerful book on libertarianism. Murray's version is highly readable and highly original -- so much so that many libertarians may disagree with parts of it. Despite that, or for that reason, it is well worth reading.

January 24, 2004
Are you a redneck?
By Tom Smith

Every word of this is true. Just ask my neighbors.

Guess Who?
By Michael Rappaport

Which right-wing Republican made the following two points about public schools and the civil rights movement? First, “he described school systems that are ‘imploding upon themselves,’ beset with ‘bloated bureaucracy’ and ‘stagnant administration.’ He said we had to 'end tenure as we know it' so incompetent teachers could be fired more easily. ‘Those going into teaching have the lowest SAT and ACT scores of any profession in the United States,’ he observed. The teacher certification process, he concluded, is ‘an absurd anomaly’ that creates a ‘convoluted monopolistic structure.’ He suggested that every school should be turned into a charter school so parents would have more choice."

Second, he “took on civil rights groups. In speeches at Yale and in Washington, he said affirmative action had achieved many positive results. But he said it was time to acknowledge the costs. Once, he said, the civil rights movement was a ‘mighty battle between good and evil,’ but now the ‘civil rights arena is controlled by lawyers, [with] the winners and losers determined by rules most Americans neither understand nor are sympathetic with.’ Affirmative action, he argued, ‘has kept America thinking in racial terms.’ It has helped foster a ‘culture of dependency.’ Further, he said, ‘there exists a reality of reverse discrimination that actually engenders racism.’"

In fact, this person is running for President. Is Bush being primaried? Nope. The person is John Kerry, the current Democratic frontrunner. David Brooks, from whom these quotes were taken, has the story.

January 23, 2004
Einee meinee mienee moe
By Michael Rappaport

David Bernstein discusses a lawsuit involving the rhyme “einee meinee mienee moe, catch a tiger by the toe, if he hollers let him go, my mother says to . . . .” I said that hundreds of times as a child and my children say it sometimes. (In fact, when grading a paper that is between an A and a B, I still sometimes – no, skip that.) I had no idea that it was once a racist rhyme, with the N word substituting for “tiger.” That is quite sad. It also sad, however, that a hostile racial environment lawsuit was brought against an airline because its employee used a nonracist version of the rhyme and the lawsuit was not dismissed on summary judgement.

Injustice in Idaho
By Tom Smith

This is the kind of injustice that just makes my blood boil. Who do those little people in Idaho think they are? Hat tip to lawyer-mother-triathelete-fearless-Baja-adventurer, my sister Trish Smith.

January 22, 2004
Prairie Dog
By Maimon Schwarzschild

The Boston Globe, in a front page story by Sarah Schweitzer yesterday, Jan. 21 (no link available), quotes "former Senator Alan K. Simpson, Republican of Wyoming" as describing Howard Dean after the Iowa caucuses: "He looked like a prairie dog on speed".

Don't you miss Alan Simpson?

The EU Constitution
By Michael Rappaport

I was reading a print version of the Economist the other day, while waiting to meet someone, and came across a discussion of the failure of the Europeans to agree on a constitution for the EU. Interestingly, the Economist placed the blame on, you guessed it, that most multilateral of all European nations, France.

Yet, the most amusing part of the story involved this discussion of one of the meetings:
    On December 12th European leaders sat down to lunch expecting to thrash out final details of a constitution for the European Union. But the Italian prime minister, Silvio Berlusconi, who was in the chair, had other ideas. “Let’s talk about football and women instead. I know a lot about women, I’ve even [sic] featured in the pages of Playboy, but I know there are other people around this table who know even more,” he said. Turning jovially to the German chancellor, Mr. Berlusconi remarked: “Gerhard, you have had four wives—what can you tell us about women?” Neither Mr. Schroder nor any of the women at the table was amused. It was an inappropriate opening. A day later Mr. Berlusconi reported to a reconvened group that the talks had failed.
Not exactly James Madison and George Mason in Philadelphia.

January 21, 2004
Pillars of modern morality
By Tom Smith

Reading the New York Times is like eating a big dish of pasta, knowing that somewhere in the midst of the tasty stuff there is a small pebble which sooner or later you will crunch painfully between your molars. I got all the way to the Arts section the other day before running into anything unusually objectionable. Then there was this. This review of the new Showtime series "The L word" which sports cavorting lesbians but which is really about how darn loyal and wonderful those beautiful, affluent, career-minded, did I mention beautiful?, lesbians can be, did not bother me for the usual reasons. The decline of public morality, blah, blah. What struck me was this little gem:

To some, that can seem like an oxymoron. There may be nothing wrong with performing Sapphic acts to entice the opposite sex, but it is hard to reconcile such tableaus with gay or feminist ideals of independence and self-respect.

Lines like these are a Times speciality. Let me see if I understand. Perish the thought that anyone would suggest it is immoral for say Mrs. Jones to have over her doubles partner so they can go at it until Mr. Jones feels ready. But wait, is this sort of thing consistent with feminism? Oh dear, we seem to have here a genuine moral conundrum, on the scale of those great dilemmas of freshman philosophy. It is sexually arousing, therefore good. That is one of the bedrock principles of Hollywood morality. And yet, it is perhaps inconsistent with feminism, which is, whatever else it is about, not about arousing men. I'm afraid this is all pretty deep water. Thank goodness we have the Times to guide us.

Frank Snyder responds on Legacy Preferences
By Gail Heriot

Frank Snyder, Associate Professor of Law at Texas Wesleyan University, sent me an e-mail responding to my post on Monday on legacy preferences. Here's a slightly edited version of his argument:

"There may be a moral problem with legacy admissions, but the financial issue is more complicated than [Gail] suggests. It's not a question of taxpayers supporting the children of favored alumni. Taxpayers pay only a portion of the cost of state university education; a good deal of the rest is made up of contributions from alumni. Legacy programs exist because they enhance alumni giving. The parents whose children are admitted to the school are the ones who disproportionately fund the stuff the legislature won't pay for. In a sense, schools auction off some of their seats to the children of rich alumni, to help underwrite the education of all the students.

"Let's say that a hypothetical school (perhaps like the University of San Diego) has a rich alumnus who's willing to give a lot of money to build a big new science center, but who's really interested seeing his 18-year-old son attend the school. Would it be "corrupt" for the school to admit the donor’s son even though he's just a little bit below the ordinary admissions criteria, and therefore secure the money that will go to benefit all alumni? Is it "fair" to the other students? If the son later decides to go out for the football team, and dad agrees to build a big new athletic training facility, is it corrupt if the school puts the son on the team?

"True, a school like USD is a private institution, and bringing the state in raises a somewhat different issue. It's perfectly possible to argue that when the state is involved, the rich shouldn't be able to buy things the poor can't-whether it's a place on the Olympic team, a seat in a state university, a cellular frequency, lunch with a Senator, a ticket on the Space Shuttle, timber from public lands, or a sky box in a public stadium. But that's not because taxpayers are providing a subsidy, but because it (i) offends our notions of fairness and (ii) creates a risk of corruption of government officials. The official corruption argument here seems weak; of all the things rich people can bribe officials to get, seats in state universities probably figure well down the list. As for fairness, that's complex. After all, why is it fair that dumb students (who pay full price) subsidize the smart students (who get academic scholarships)? The smart students, after all, are going to be more successful than the dumb students and in a "fair" world they should pay more, not less. If the answer is that smart students make the institution stronger and more attractive, and thereby benefit all students, the same is true of students with rich parents.

"As for the suggestion that administrators like legacy programs merely because they make dealing with alumni easier, I can't (as somebody who sits on an admissions committee) see why it is harder to tell an alumnus, "Sorry, we do not have a legacy admissions policy," than it is to say, "We have a legacy admissions process, but your kid was too dumb and you're not prominent enough even to qualify for that lower standard." The ubiquity of legacy programs at state and private institutions all over the country suggests that there is a powerful economic reason for them, not merely that they are relics of the past that happen to suit the convenience of administrators. I suspect that disposing of them at state institutions will only increase the comparative advantage of private institutions in attracting the wealthy donors of the world."

Some of what Frank has said, I agree with. I will try to respond soon. Thanks for writing, Frank.

January 20, 2004
So you'd like to be eaten by a grizzly bear
By Tom Smith

Bear activist Timothy Treadwell, (lately) of Malibu, California has been eaten by a grizzly bear, along with his girlfriend, whose bad judgment apparently extended to both men and bears. This interesting article in the ever entertaining Outside magazine tells the story well, if perhaps too sympathetically. Treadwell took the Walt Disney approach to bears, thinking that he could bond with them, sort of brother to brother, sort of like the Lion King, only with bears. And now he's part of the Circle, the Circle of Life.

His last meal, he being the main course, was captured on videotape, don't ask me why. He died reasonably well it seems, yelling at his soon to be second course companion to save herself. To no avail.

The rangers arrived later, and shot one of the bears feasting, though whether it was the one who killed them, who knows. It only took 11 shots from the rangers probably .40 caliber to bring the 1000 pounds of highly evolved, highly intelligent predator down. When the rangers came back to look at the bear carcass, all that was left was the head. Other bears, thrifty souls that they are when it comes to meat, had eaten him.

I find grizzly bears fascinating. I spent a summer in Alaska almost 20 years ago now and had a couple close encounters with grizzly bears. When I was there, there was this really stupid debate between the tree hugger types who argued that you should never go armed into the bush, because then you would be over-confident, and the bears would sense your arrogance, and thus your chances of getting attacked would be higher. The more sensible view was that you should carry a .45 magnum, which would at least give you a chance if Mrs. Grizzly decided she deserved a break today and you were the closest thing to a Big Mac.

The closest call I had came at the end of a 9 day trek around the Muldrow Glacier I went on with my now wife and a very British fellow I knew slightly at Oxford and ran into quite by accident on a bus coming out of Denali National Park. Walking out along the edge of the glacier, down Gravel Creek, we stumbled across a bear eating something, probably a caribou. The bear was standing up on his or her hind legs, batting away carrion birds trying to get a piece of the action. A wonderful wilderness moment. We decided to give the bear a wide berth, and so climbed up the scree onto the glacier itself, maybe 25 vertical feet to our left. That's when the bear walked away from his kill and climbed up on the glacier too, blocking our planned route of exit. Bears may not be able to talk, but they are very good at what they do, which is kill large mammals and eat them. At this moment, I breathed a silent prayer, which went like this: "Sh@#, F*&%, Sh@#, F*&@, F#@%!!!!!" Just to be clear, this was classic predatory behavior by the bear. Whenever anybody tells you about bears' natural curiosity, their desire to explore their world, etc. etc., remember you are listening to a hamburger with legs. The nose up in the air is not a sign of a bear thinking "Ohhhh, maybe it's a new friend, what a wonderfully diverse universe I live in!" A better translation would be "Mmmmmmm! Meat! Meat!" Think of how you feel when you smell the Weber working on a filet mignon and you haven't eaten since breakfast. Now picture the filet dressed up in a little backpack and booties. That's you.

We decided to get off the glacier. Unfortunately, whether out of sheer panic or my natural clumsiness, I decided stupidly I could glissade down the scree we had just climbed up, my having forgotten that it was frozen solid to the ice. This was remarkably stupid, as I had just climbed up it. Of course I tripped and did a full somersault coming down into the creek bed. I looked up just in time to see Jeanne attempt the same manuveur. She also fell and tumbled. That neither one of us broke anything probably saved our lives. I put down Jeanne's following me to loyalty. She later told me that she was thinking that just because I had fallen did not mean she could not pull the descent off we ease. Richard the Lion-hearted gracefully picked his way down. Then, and this is the important thing, so did the grizzly bear.

We were in what long-time outdoorsmen call "a pickle." I had no idea how to get past the bear. Then Richard came up with the following idea. He said he had read somewhere that grizzly bears hated rock and roll. He suggested that he lead us out, marching style, as we all followed his lead singing Elvis Presley's classic "Blue Suede Shoes." I am not making any of this up. Still dazed from my fall, and naturally curious as to whether I was soon to die a horrible death, and that before or after I watched my best friend get devoured alive, what could I say, but what the hell. I didn't have any better ideas. Richard started singing the tune in a surprisingly credible Elvis imitation. The boy could sing! We joined along as best as we could, marching right at the 1000 pound monster. The bear stared at us for a moment, as if to say 'WTF is this?!' then scampered back to his caribou or whatever it was. We marched all the way into the valley of the river, and saw no more bears until we were safely on the bus back to the ranger station. Richard went on to be a master at one of England's great public schools. You can see why they had an empire.

By Michael Rappaport

It is hard to fathom just how depraved many of the Palestinians are. It now turns out that the "Palestinian mother of two small children, who killed four Israelis by blowing herself up at a border crossing, carried out the suicide bombing to atone for having committed adultery." The Associated Press "reported yesterday that Raiyshi was an adulteress forced to carry out the attack to restore her family's honor. It is not uncommon for Palestinian women accused of adultery, or of having sex before marriage, to be killed by their families trying to rid themselves of perceived disgrace."

Of course, the depravity does not end there. People who witness such depravity and refuse to make the appropriate moral judgements are also depraved. To be a Nazi or Palestinian sympathisizer is to be depraved. This is, of course, not to say that one cannot genuinely feel bad for those Palestinians who have suffered and who also oppose the evil that their leaders commit (all five of them). One can feel bad for Germans who opposed the Nazis and who were forced to serve in the German Army. But this sentiment as to those Germans is generally an afterthought, and that is how it should be as to the innocent Palestinians. The main point is that we are witnessing the depraved acts of a depraved people who have the sympathy of much of the world. It is not too pretty.

January 19, 2004
Times Book Review of Frum and Perle’s “An End to Evil”
By Michael Rappaport

The New York Times unfavorably reviewed David Frum and Richard Perle’s, "An End to Evil: How to Win the War on Terror" – not exactly a surprise. For Frum’s response, see here.

As an illustration of the problems with the book, the review states:
    Discussing rulers like Fidel Castro and Ayatollah Ali Khamenei, they declare that "when it is in our power and our interest, we should toss dictators aside with no more compunction than a police sharpshooter feels when he downs a hostage-taker." Of the United Nations, another one of their nemeses, they write, "The U.N. regularly broadcasts a spectacle as dishonest and morally deadening as a Stalinist show trial, a televised ritual of condemnation that inflames hatreds and sustains quarrels that might otherwise fade away."
To me, though, these are powerful points. Indeed, the police sharpshooter analogy is, er, right on target.

For a more balanced review of the book, take a look at – where else? – the internet. At Amazon, the comment section for the book contains 57 customer comments. While not all are thoughtful, many of them are and they give a variety of viewpoints on the book.

By Michael Rappaport

Three good posts on originalism. Larry Solum discusses it as part of his legal theory lexicon series here, and Randy Barnett and Larry respond to a philosopher's critique here and here.

Legacy of Favoritism
By Gail Heriot

Last week's announcement by President Robert Gates that Texas A&M University would abolish its so-called "legacy policy" was good news--great news in fact--though some haved complained that his timing could have been better. Back in December, Gates earned my respect and admiration by deciding that A&M would continue to shun race-based admissions despite the Supreme Court's recent decision "authorizing" such policies in pursuit of diversity. Not surprisingly, Gates' decision to retain colorblind admissions brought down upon him the wrath of Texas legislators, who attempted to bully him into adopting preferences for Blacks and Hispanics. The arguments they made, insofar as they made any, were mainly the same old stuff--we must destroy equality in order to achieve equality--but on one of the aspects of the issue they had a point. It is also wrong to give preferential treatment of the sons, daughters and grandchildren of A&M alumni. Gates says that his had been planning to abolish the legacy program even before he came under pressure and I believe him. For the life of me, I can't understand how these relics of an earlier (and more corrupt) time have survived at state universities more than six minutes into the modern era. It's not that it's wrong to abolish race preferences until one has also abolished legacy preferences; they are independent wrongs. But it would have been a nice gesture to abolish both back in December--not crucial but nice.

The legacy program has tended to benefit White students disproportionately at A&M, though not as strongly as one might have thought. Blacks and Hispanics have benefited too; their proportions among those admitted under the legacy program have not been wildly different from their proportions among those admitted under the regular program. But racial "disparate impact" is not what makes the policy wrongheaded. It's wrong because it injects irrelevant matters into a decision that ought to be based on the student's academic and personal record, not on his pedigree. And it would be wrong even if it had had no racially disparate impact.

Why do universities do it? It's said that it fosters school spirit among alumni. But my suspicion is that its real function is to insulate administrators from fielding endless phone calls from individual alumni hoping to use whatever clout they have. It routinizes that task.("Yes, Mr. Throckmorton, your son did receive special consideration, but unfortunately even with that special consideration, he didn't quite make it. Our admissions policies are just so competitive these days. It has been wonderful talking to you ...") Such a benefit may loom large in the minds of administrators because it affects them directly--larger than the cost in terms of academic standards, which does not affect them except quite indirectly.

The Wall Street Journal's editorial a few days ago was kinder to legacy programs than I would have been. It stated simply:

"There is a genuine debate to be had about whether legacy admissions, particularly at public universities using tax dollars, are good pulic policy. Should the children of some taxpayers be treated more favorably than the children of others? We tend to let the institutions decide what's in their own best interests."

I'm not so sure how genuine the debate is. Yes, yes, yes, I do believe that discrimination on the basis of race is the more serious wrong, since discrimination on the basis of race and not discrimination on the basis of parents' alumni status has long been the poisonous issue in this country's history. There's even a law against race discrimnation (though the Supreme Court seems to have forgotten this). But both of them stink. And if a state university ought to be able to favor the offspring of its old boys over other applicants in order to foster school spirit, what other forms of pedigree favoritism ought to be permitted? What shouldn't state taxing authorities be permitted to give tax breaks to the children of long-time state residents in order to foster state spirit? It's probably true that people whose families have lived in the state for generations are more apt to remain in the state, feel themselves to be part of the state and its culture, and promote the state than transient residents. Transient residents are ... well ... transient. But who cares? Such a policy would be impossible to justify.

The one redeeming aspect of the issue is that legacy preferences are an extremely minor factor in college admssions today. At the University of Michigan, for example, legacy applicants received one point (as opposed to Black and Hispanic applciants who got 20 points) on a 100 point scale. It functioned literally as a tie-breaker. Racial preferences, on the other hand, leap-frogged less-qualified students over much more-qualified students. Minority students admitted frequently found themselves over their head academically. That is much less likely to be the case with legacy students.

More on Originalism and Precedent
By Michael Rappaport

In discussing various posts on originalism and precedent, Stuart Buck recommends an article by Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents. I quite agree with Stuart’s recommendation, having relied on Nelson’s piece in developing my intermediate approach to precedent. Nelson argues in favor of a rule where there is a presumption in favor of following decisions that are merely erroneous, but there is presumption against following decisions that are demonstrably erroneous. His article also shows that this was historically the rule in the early years of the nation. I understand Nelson to be arguing for a rule that places some weight on precedent, although a limited amount of weight.

Nelson has another article that is relevant to originalism and precedent as well, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003). This piece is quite interesting in general, and makes reference to some ideas that can be used to develop another argument why an originalist might favor precedent. The Framers of the Constitution might have thought that the meaning of the Constitution was not entirely clear and therefore would need clarification. They might have thought that it would be best to clarify it through precedent. Since the early precedents would have been reached by people who would have had more knowledge (and perhaps more sympathy) with the original meaning, adhering to those precedents (especially those precedents that were not demonstrably erroneous) would further the original meaning.

Epstein on Patents
By Michael Rappaport

Another interesting essay by Richard Epstein, this one on patents. Those not familar with the academic literature on patents might be amazed to discover that the great majority of acadmics seem exceedingly hostile to patents. Once again, Epstein swims against the current, arguing in favor of patents, but also advocating increased funding to the patent office.

January 18, 2004
Epstein Reviews Sowell
By Michael Rappaport

Richard Eptsein has reviewed Thomas Sowell’s new book, Applied Economics. (Hat tip: Greg Goelzhauser.) While Eptsein praises Sowell for powerfully criticizing stupid regulations such as price controls, he believe that Sowell ducks the hard cases like public utility regulation and intellectual property, where one must address tradeoffs and the answers are not obvious.

This is not the first less than fully enthusiastic review that Epstein has given to a Sowell book. Epstein came close to panning Sowell’s Vision of the Annointed some years ago. It is, of course, a strength of the right wing intellectual movement that these criticisms are made. On this issue, I must admit that Epstein has persuaded me over the years that questions such public utility regulation and intellectual property are tough ones which have no simple solutions. Of course, there are also stupid solutions and sometimes – perhaps often – the political process produces those.

More on The Third Man
By Michael Rappaport

Vast Right Wing Conspiracy takes issue with my review of The Third Man.

January 17, 2004
By Michael Rappaport

Interesting post on Marginal Revolution about marriage and political change. It references the work of John Gottman, who “has spent decades studying how married couples interact.” The “highlight of the research is that couples where the dominant mode of interaction includes criticism, contempt, defensiveness and stonewalling are very, very likely to divorce. Successful marriages involve a great deal of mending and reworking of the relationship.” Also, according to “Gottman's [mathematical] analysis of marriage . . . the math predicts stability or decline, and not much in between - a non-trivial prediction.”

January 16, 2004
Incisive commentary on Justice-Cowgirl O'Connor
By Tom Smith

Did you miss the Lehrer News Hour commentary the other day on Justice O'Connor? I should have been so lucky. It went something like this:

Jim Lehrer: We're here today to discuss how wonderful Justice O'Connor is. Let me begin by asking Doug Kmiec, Dean of Pepperdine Law School, this question. In what do you think her wonderfulness most consists?

Dean Kmiec: It's hard to say, Jim. She is wonderful in so many ways. I have argued before her before, and hope to do so again. I think if I had to say, however, it would be her profound wisdom, her sensitivity to the fact that every case has to be decided by a detailed attention to the facts, which, as you know, are different in every case. Indeed, there's just no telling what fact may turn out to be the decisive thing!

Jim Lehrer: Dean Sullivan of Stanford, wonderful attention to the facts?

Dean Sullivan: Well, that, and so much more. You know, she grew up on a ranch, in the West, with cows and everything. Six guns, Indians, purple sage, the whole bit, one would think. That gives her wonderfulness an extra dimension that you don't normally get inside the beltway.

[Professor Smith at home: Oh God. Oh no. Ack. ack. ack. Jeez, I just cleaned that rug . . . . Biscuit! Get away! That's not good for you, girl!]

Jim Lehrer: John Yoo, professor of law, is wonderful a wonderful enough word to describe the wonderfulness of Justice O'Connor?

John Yoo: Well, I'm not sure wonderful is the word I would choose. To be wonderful, I think a judge should follow the law, not just make it up so as to maximize one's personal influence and that of the court one happens to be on. When judges don't follow the law, it makes me nervous. I think people who make up laws should be elected.

Jim Lehrer: Just making it up as she goes along, Dean Kmiec?

Dean Kmeic: Oh, no! Oh no, no, no, no, no! You are neglecting Justice O'Connor's exquisite sensitiving to the facts . . . .

Dean Sullivan: That's right!

Dean Kmeic: Her sensitive sensitivity to the ebb and flow of the emerging growth of the penumbra emmanating from the aura of the meaning of the changing dimension of our popular understanding of the . . .

Dean Sullivan: legitimacy

Dean Kmeic: . . . Of the court, which she so wonderfully understands, in a very wise way.

Jim Lerher: Legitimacy, Professor Yoo? Wisdom?

Professor Yoo: I would just like her to follow the law, not just flop around in the middle so she can be important. It's not just about maximizing political power, you know.

Political Scientist: Yes it is. Of course it is. What are you talking about?

Professor Yoo: Look, let me put it this way. Does anybody seriously think that anyone will be reading O'Connor opinions 20 years from now, as we read today the opinions of a Holmes or a Hand or even a Brennan (though I admit this last one is a stretch)?

[Professor Smith at home: Read . . . O'Connor opinions ?! . . . ah ha ha hahahahahahahaha! Gulp. choke. choke. choke. Sheesh. That was my last Stone Pale Ale . . . Any one that reads an O'Connor opinion for less than $500 an hour is a masochist . . . risking brain damage . . . God, though, what about a Souter opinion? Death by a thousand cuts. Rather read . . . Or a Kennedy opinion . . . the horror, the horror. . . ]

Dean Sullivan: It's hard to tell what will be influential in 20 years . . . I suppose anything can happen . . .

Political Scientist: That's right. Anything!

Dean Kmiec: I think we should get back to the wonderfulness of Justice O'Connor. I just want to give her a big, fat kiss.

Dean Sullivan: Me too.

Political Scientist: Would someone bring me some coffee?

John Yoo: I'm sure she's a nice woman. I'm not saying she's stupid (though I'm not denying it either). I would just like it if she would act like a judge. That's what it is supposed to be, you know, a court . . .

Dean Kmeic: I wonder if I might play for you this little ballad I've written about Sandra Day? It goes to the tune of "Yippy Tie Yie Yay, Get Along Little Doggies" . . . It's called "The Sunshine Justice" . . .

Jim Lehrer: I'm afraid we're out
of time.

[Professor Smith at home: Come here, Biscuit. Would you like to be a Supreme Court Justice? Biscuit, you're such a smart girl . . . ]

Huubble condemned to fall apart?
By Tom Smith

What is this about? The space telescope is much more important than the silly international space station. This is why government space exploration worries me. Someone should start a company called and let them explore space with private money. I like space much more than the average person, but I don't see why the average person should have to pay for my hobbies.

Deep thoughts on friendship
By Tom Smith

Essayist Roger Rosenblatt proves once more that it is no bar to success in journalism to have significantly below normal intelligence.

Anti-Bush TV ads from
By Tom Smith

Here are the finalists for's contest for anti-Bush ads. I am trying to broaden my horizons and see what the enemy is thinking. Some of the ads are funny. No true greatness in evidence, however.

Slate on Sharon
By Michael Rappaport

A good piece over at Slate on Sharon's decision to build the fence and to disengage.

January 15, 2004
Drezner on O'Neill
By Michael Rappaport

An interesting explanation for some of the Paul O'Neill affair from Dan Drezner, who used to work at Treasury when O'Neill was there.

More tension with Brazil
By Tom Smith

Oh dear, the heat is rising with our steamy neighbor to the south.

New City Journal is out
By Tom Smith

City Journal is consistently a great read. This piece by James Q. Wilson, a true god-like entity in my book, is particularly good.

Originalism and Precedent
By Michael Rappaport

About 10 days ago, I participated in a Federalist Society Faculty Conference panel entitled the “Transition to Originalism.” The focus of the panel was the role of precedent in an originalist jurisprudence. Organized and moderated by Randy Barnett, the panel also included Steve Calabresi, Rick Kay, Larry Solum, and Keith Whittington. It was a pleasure and an honor to be included among these genuinely excellent scholars.

In general, the speakers held three different positions on precedent. The largest group defended what I believe to be the most popular view of precedent among originalists. Under this view, precedent is either entirely unconstitutional (see Gary Lawson’s works) or a practice that should be minimized to the extent possible. On the panel, Rick Kay took the Lawson position that all precedent is illegitimate, while Calabresi and Whittington sought to minimize it. Calabresi made the interesting argument that some precedent is legitimate, since precedent was accepted by the Framers, but only in the relatively rare case when all three branches had approved of a precedent over a period of time. Whittington maintained that precedent was generally problematic, but in cases when prior decisions had to be followed, as with some of the New Deal cases, they should be read narrowly and not given any generative force.

The second position was defended by Larry Solum, who argued for a system of strong precedent. Solum powerfully developed his view that the rule of law requires that precedents be followed and that decisions should be overruled only when they are inconsistent with the remainder of the law. Solum has posted his argument from the panel here and has defended his view at greater length here.

I took the third position, arguing in favor an intermediate approach to precedent. I maintained that the Constitution does not prohibit precedent, but actually requires at least a very weak version of precedent. Moreover, the best normative approach to precedent is one that generally confers precedential weight on decisions, especially a series of decisions, but allows for overruling when there are strong reasons for doing so. The remainder of this post will briefly develop this view.

The most basic question involving precedent is “what type of law are the precedent rules?” In my view, precedent rules are mainly common law rules that are discovered by the courts but can be overridden by Congress through its power to pass necessary and proper laws for carrying into execution the judicial power. There is, however, a minimal degree of precedent that derives from the vesting of judicial power in the federal courts. Given the widespread acceptance of precedent in the Anglo-American world of the late 18th and early 19th century, including by such notables as Blackstone, Madison, Jefferson, Marshall, Hamilton, Adams, Jefferson, Kent, Story, and Patterson, it is fair to conclude that the Framers’ generation would have deemed a court that completely ignored precedent not to be exercising the “judicial power.” It is important to stress, however, that the Constitution only requires an extremely weak form of precedent. While some people at the time of the Constitution embraced a strong view of precedent, many supported a weak view that conferred significant weight not on a single decision, but only on a series of decisions. Thus, there was widespread acceptance only of a weak form precedent and only that can be legitimately understood to be part of the judicial power. Although the claim that the Constitution incorporates a weak precedent rule is significant as a matter of theory, its practical effect is limited. The main practical import of the constitutional rule is to forbid the no-precedent approach and to prohibit some of the circuit court rules that forbid courts from treating unpublished opinions as precedents.

Given that the Constitution does not determine the precedent rule, but leaves it to statutory and common law, the question is what would be the most desirable precedent rule. While I did not offer a comprehensive approach at the panel, I did argue in favor of an intermediate approach that included several rules. First, there should be a presumption against following a precedent that is demonstrably erroneous. By refusing to follow such decisions, the Court can be confident that it is improving the accuracy of the law while at the same time leaving significant scope for precedent in the more common case of a decision that is erroneous, but not demonstrably so. Second, there should also be a presumption against following a decision when it was reached in violation of the precedent rules at the time and when the decision itself was erroneous. This rule would serve to deter violations of the precedent rules and help to address the situation where some judges ignore precedent rules but then expect other judges to follow their precedents. Third, decisions that have been significantly relied upon, such as a holding that Social Security is constitutional or a decision that governed the sentencing of hundreds of thousands of criminals, should generally be followed, even if they are demonstrably erroneous or otherwise eligible for overruling. (For Kyron Huigen’s discussion of the situation involving the sentencing of criminals, see here.)

The aim of an intermediate approach is to take account of both the benefits and costs of following precedent in an effort produce an optimal rule. By contrast, the leading originalist view of no-precedent ignores all of the benefits of following precedents. Not only is that view not required or even permitted by the Constitution, but it would also create enormous costs from the overturning of cases that have been relied upon and might create tremendous uncertainty as judicial decisions shift back and forth with the changing of personnel. Indeed, if originalists were to overturn popular precedents that were relied upon, the public reaction might be so great that it would doom the originalist enterprise, leading politicians of both parties to promise never to appoint judges who believe in that type of judicial behavior.

In the end, I believe the skepticism about precedent that most originalists have is based on some important insights about law and the need for accurate adjudications. And their disdain for the cynical use of precedent by unprincipled judges, as displayed in the per curiam Casey opinion, is entirely justified. But these originalist neglect the important benefits that precedent can produce. While I am convinced that a no-precedent rule is undesirable, the hard question is determining what precise precedent rules originalist should consider optimal. Since I believe this is such an important issue, I have decided to write an article developing further this intermediate view of precedent. I hope to post it in the future.

January 14, 2004
More On Buchan
By Maimon Schwarzschild

John Buchan was not only a writer who gave us (and Alfred Hitchcock) The 39 Steps; Buchan also had something of a political career in Scotland, England, and Canada. As Lord Tweedsmuir of Elsfield, he was Governor-General of Canada from 1935 until his death in 1940. (The Governor General, for you non-colonials, is the surrogate for the monarch, and hence the ceremonial head of state in Canada, Australia, or any of the Crown's "dominions beyond the seas".)

Buchan has frequently been accused of anti-semitism, although Mark Steyn defends him stoutly against the charge, and Buchan was notably not pro-appeasement of Hitler during the 1930s.

Buchan was surely the most talented Canadian Governor General ever. (Please hold your cat-calls about this being truly faint praise...) Canada's first Canadian (rather than British) Governor General, on the other hand, was Vincent Massey, whose brother was the actor Raymond Massey. Raymond Massey, as you will recall, did a first rate Abraham Lincoln, but was probably best known as Doctor Gillespie in the "Dr Kildare" television series in the 1960s.

Which reminds me
By Tom Smith

Professor Rappaport's review of the Third Man reminded me of The 39 Steps, which reminds me to mention that you should read all the novels of John Buchan, most politically incorrect author in the last century, or one of them anyway. Intrigue, brave Brits (or Scots, actually) imperialism triumphant, dastardly people of dubious heritage. Well, yes, he is a racist, probably, a la Kipling, but that was another time, and you can overlook it or disapprove and still enjoy the cracking good yarns. Well written? Well, no. Plots tend toward the elaborate and creaky at times, but where else do you get the world being saved over port and cigars, travelling in disguise to foreign ports crawling with German spies, the Great Game and all that, in such unapologetic style?

Daily fix
By Tom Smith

George Will is unfortunately right about this. Could Dean win? Could any Democrat win? Of course they could!

Here's a blog from some guy who seems pretty well informed about California politics.

Tony Blakley at the Washington Times is deeply misguided about immigration, as most the conservatives seem to be. I hope to blog this substantively sometime in the future, but the same Californians who bitch about illegal immigration have their cars washed, their food produced, their houses cleaned, their children cared for, their lawns mowed, their dishes washed, their clothes made, and on and on, by illegal immigrants or people they would have to pay a lot more, were it not for illegal immigration. You want to raise taxes? Give us "secure borders." Illegal immigration may be illegal, but it is also our economic policy. It's time to put our mouth where our money is.

Here's some typical Republican over-confidence--Rich Lowry at the National Review. Yes, few Republicans are going to vote for Dean or Clark. Let's remember this when we're watching Woodstock on the Washington Mall. It's not about us. I couldn't watch Gore on TV without getting ill, and yet he won the popular vote. He would be president but for whatever passes for legal thought in the minds (sic) of Justices Kennedy and O'Connor.

Could Bush win California? Doubt it. But maybe force Dems to defend it.

Going back to the Moon and to Mars should get him the geek vote. Speaking of geeks, here's Michael Crichton's official site. The inimitable and invaluable Ron Bailey on Mars. Has some reservations. Ron's great, but never go out drinking with him the night before your first day at a new job, in any town where he knows the bars (which includes most).

And in Iran, the people . . . united . . . will never be defeated! Or as they say in Iraq, Liberty! Whiskey! Sexy! Wouldn't that be just fine! It's not too early for the left to start working on their spin that this is not really a victory for America and freedom. I wonder if the clerics would be willing to use WMDs on their own people? I guess it depends on what God tells them.

Friends is finally over, thank goodness. Too bad they didn't have an episode where they all eaten by large predators. Among other things, that show had a bad influence on women's hair styles.

Here's a sweet human interest story about a Palestinian mom.

Here's Krugman's latest op-ed. How many intellectually dishonest things can you find in this column? It's like playing I Spy with your kids.

Norwegian billionaire climber manages to kill himself in South Africa.

I think the final WTC memorial design looks kinda ugly, but what do I know.

By Michael Rappaport

Very interesting post on happiness over at Marginal Revolution.

Bullies are like dictators
By Michael Rappaport

This post by Andrew Sullivan, discussing a story which reports research showing that bullies have plenty of self esteem, strikes me as entirely right:
    The Self Esteem of Bullies: They have plenty of it. But we knew that, didn't we? "They don't show any signs whatsoever of depression, loneliness or anxiety," Dr Juvonen said. "They look even healthier than the socially adjusted kids who are not involved in the bullying." Duh. They're mainly boys; they have testosterone; their social cachet comes from becoming Alpha Male. The last thing you need to do is psychoanalyze them: they have to be disciplined. Like dictators.

January 13, 2004
By Michael Rappaport

Brian Leiter hits the nail on the head in this criticism of the AALS (American Association of Law Schools).

Classic Movie Review: The Third Man
By Michael Rappaport

I recently watched the classic movie, The Third Man. The thriller, set in post-World War II Vienna, has been lauded as one of the best movies of all time, and Orson Welles’s performance in the movie, which is largely confined to the last 15 minutes, is certainly great. Watching the movie more than a half century after it was produced, it seemed well-crafted, but dated. The cinematographic techniques might have been innovative when the movie was released, but they were now familiar. One effect though that retained its power was the mysterious zither music running through the movie.

What I really liked about the movie was its story and the moral choice it presented. The main character (Holly Martins) must decide whether to support and protect an old friend out of loyalty or to turn the friend in to the police once he discovers the depraved actions the friend has taken. Martins considers refusing to help the police, but in the end decides to help capture his friend at some risk to himself.

This behavior is contrasted with the friend’s (former) girlfriend, who remains loyal to him, even though he has faked his death and left her grieving and at risk of being deported to communist controlled Eastern Europe. She not only refuses to cooperate with the police but attempts to protect him from capture.

The contrast in the way that these two characters respond to the friend is what gives the movie its power, and Wells plays the friend to perfection – portraying a person who could produce such strong attachments and yet be so despicable.

Wesley Crusher has a web site
By Tom Smith

Wesley Crusher has a blog. Life is too weird. Check out what he's been doing since TNG. Maybe he should go to law school.

Army War College SSI report critical of Iraq war, war on terror
By Tom Smith

Here is a link to get the report by Jeffery Record critical of the Iraq war and the war on terrorism. Personally, it seems to me a non-story. Whether the report is any good, I don't know yet.

Maybe giving to Oxford isn't such a great idea
By Tom Smith

I was thinking about giving some money to Oxford, one of my alma maters. Instead, I think I will send the money here. I think I like the idea of helping pay for an ambulance more than, however indirectly, the airfare of some British twit who wants to come over here and spew hatred against Jews. Or maybe there's some Jewish organization at Oxford I could give to? On top of everything else, it is just profoundly wrong, for some "poet" in perhaps the most cossetted place on Earth, to rant as if he knows what it's like to pick up the pieces of a child off a street, or to call a father or husband and tell him that his wife or daughter is dead and that the body is "non-viewable." What a disgrace.

January 12, 2004
By Maimon Schwarzschild

Good piece today by Mark Steyn, on bending over backwards -- in America and in Europe -- in behalf of Moslem (and even Islamist) sensibilities.

("Sensibilities", of course, brings to mind not only Jane Austen, author of "Sense and Sensibility", but also the 1950s Oxford analytic philosopher J. L. Austin, author of "Sense and Sensibilia". It is not impossible that J.L. Austin chose a career in analytic philosophy in order that he could author a book with that title. I mention all this in hopes of reminding myself of a better Oxford than the Oxford of Tom Paulin, whom Mark Steyn has reason to mention today.)

Redecorating hell, part 2
By Tom Smith

This morning I had a great idea. We need to put something over the fireplace, right? A painting or something. Well, why not, now work with me here, put a 42 inch plasma flatscreen TV?!! When you weren't watching Rio Bravo, True Grit, The Godfather, Goodfellas, Chinatown, GB&U, LOTR, Furturama, Animal Planet, Extreme Animals, and so forth, you could set it on a screen saver of some painting or outdoor scene or whatever! 2 birds, 1 stone! And, you could get one for less than an entertainment center would cost! Brilliant. Ran it by Jeanne. Incomprehendably, she said "no." Just "no." It would look like a painting, I said. No, she said, it would look like a big TV screen with a picture of a painting on it. So I asked my 10 year old what he thought of my idea. "I think it sounds retarded," he said. "Don't say 'retarded,'" I said, but my heart wasn't in it. So often, the fate of genius is to be misunderstood.

Hayek Bio
By Tom Smith

This looks good. via Virginia Postrel

By Tom Smith

This piece by the one of the insufferable Senators of New York and Paul Craig Roberts is generating web buzz. The idea is that now that knowledge can be transferred globally on broad bandwidth, the case for free trade has to be rethought. Comparative advantage is obsolete.

See if you can spot the flaw in the argument. You may have missed it because it is so obvious. If knowledge workers in India can do what same could do in the US, but for one fifth the cost, then that is a comparative advantage. That's how it works, Chuck. It doesn't matter if it's making shoes or interpreting MRI's, if it can been done more cheaply in India than New York, then it makes sense to do it in India. But who will benefit? Well, sick American people who need MRIs for one. Workers who pay health insurance premiums for another. One could go on and on. There is no difference between shoes and ones and zeros.

I could rant on this point, but I will resist. There may be instances out there of super-duper, cybernetic, brave new world, think outside the box, it's a brand new paradigm, market failure, with oh boy what a great chance for the lovely government to intervene, but what it usually is is that someone can't be bothered to think of the thing in terms of Econ 101 -- what does it cost? Supply and demand. Somebody trying to make more money. Markets coordinating factors of production.

So (in whiney Schumer voice now) how are we all going to work with all those smart Indians and Chinese working too? It's not fair! Boo hoo hoo! Here's an idea. Why don't we do what we're better at? Like invent the diagnostic technology they can do the grunt work for in China. Design the software they can print up over there. Discover the drugs that can be manufactured somewhere else. "Knowledge work" itself has many layers and specializations. Free trade, now more than ever!